EX-10.4 7 dex104.htm SECURITY DEPOSIT AGREEMENT Execution Version SECURITY DEPOSIT AGREEMENT dated as of August 15, 2008 by and among CHENIERE LNG HOLDINGS, LLC, as Holdings THE BANK OF NEW YORK MELLON, in its capacity as Collateral Agent and THE BANK...
EXHIBIT 10.4
Execution Version
dated as of August 15, 2008
by and among
CHENIERE LNG HOLDINGS, LLC,
as Holdings
THE BANK OF NEW YORK MELLON,
in its capacity as Collateral Agent
and
THE BANK OF NEW YORK MELLON,
in its capacity as Depositary Agent
Table of Contents
Page | ||||
ARTICLE I DEFINITIONS | 1 | |||
Section 1.1 | Defined Terms | 1 | ||
Section 1.2 | Interpretation | 3 | ||
Section 1.3 | Uniform Commercial Code Definitions | 3 | ||
ARTICLE II APPOINTMENT OF DEPOSITARY AGENT; ESTABLISHMENT OF THE ACCOUNT | 3 | |||
Section 2.1 | Acceptance of Appointment of Depositary Agent | 3 | ||
Section 2.2 | Establishment of the Account | 4 | ||
Section 2.3 | Security Interests | 4 | ||
Section 2.4 | Account Maintained as UCC “Securities Account” | 5 | ||
Section 2.5 | Jurisdiction of Depositary Agent | 6 | ||
Section 2.6 | Degree of Care; Liens | 6 | ||
Section 2.7 | Subordination of Lien; Waiver of Set-Off | 6 | ||
Section 2.8 | No Other Agreements | 7 | ||
Section 2.9 | Notice of Adverse Claims | 7 | ||
Section 2.10 | Rights and Powers of the Collateral Agent | 7 | ||
Section 2.11 | Termination | 7 | ||
ARTICLE III THE ACCOUNT | 7 | |||
Section 3.1 | The TUA Reserve Account | 7 | ||
Section 3.2 | Investment of the Account | 9 | ||
Section 3.3 | Disposition of the Account Upon Discharge Date | 9 | ||
Section 3.4 | Account Balance Statements | 9 | ||
Section 3.5 | Trigger Event Date | 10 | ||
ARTICLE IV DEPOSITARY AGENT | 11 | |||
Section 4.1 | Appointment of Depositary Agent, Powers and Immunities | 11 | ||
Section 4.2 | Reliance by Depositary Agent | 12 | ||
Section 4.3 | Court Orders | 13 | ||
Section 4.4 | Resignation or Removal | 13 | ||
ARTICLE V EXPENSES; INDEMNIFICATION; FEES | 14 | |||
Section 5.1 | Compensation and Expenses | 14 | ||
Section 5.2 | Indemnification | 14 | ||
Section 5.3 | Prompt Payment | 15 | ||
ARTICLE VI MISCELLANEOUS | 15 | |||
Section 6.1 | Amendments; Etc. | 15 | ||
Section 6.2 | Addresses for Notices | 15 | ||
Section 6.3 | Governing Law; Jurisdiction | 16 |
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Section 6.4 | Headings | 17 | ||
Section 6.5 | Limited Third Party Beneficiaries | 17 | ||
Section 6.6 | No Waiver | 17 | ||
Section 6.7 | Severability | 17 | ||
Section 6.8 | Successors and Assigns | 17 | ||
Section 6.9 | Execution in Counterparts | 17 | ||
Section 6.10 | Regarding the Collateral Agent | 18 | ||
Section 6.11 | Intercreditor Provisions | 18 | ||
Section 6.12 | Force Majeure | 18 | ||
Section 6.13 | Consequential Damages | 18 | ||
Section 6.14 | Patriot Act | 18 | ||
Section 6.15 | Multiple Capacities | 18 |
APPENDICES |
Appendix A: | FORM OF OFFICER’S CERTIFICATE | |||
Appendix B: | FORM OF WITHDRAWAL CERTIFICATE |
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This SECURITY DEPOSIT AGREEMENT, dated as of August 15, 2008 (this “Agreement”), is entered into by and among CHENIERE LNG HOLDINGS, LLC, a Delaware limited liability company (“Holdings”), THE BANK OF NEW YORK MELLON, a New York banking corporation as Collateral Agent (in such capacity and together with its successors in such capacity, the “Collateral Agent”), and THE BANK OF NEW YORK MELLON, a New York banking corporation, in its capacity as Agent, bank and securities intermediary for the Secured Parties (in such capacity, the “Depositary Agent”).
A. Cheniere Common Units Holding, LLC, a Delaware limited liability company (the “Company”), has entered into that certain Credit Agreement, dated on or about the date hereof (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), with certain other Loan Parties party thereto, The Bank of New York Mellon, in its capacity as the Administrative Agent, the Collateral Agent and certain Lenders from time to time party thereto, pursuant to which the Lenders shall make Loans to the Company on the Closing Date and such Loans shall be convertible into Preferred Stock in accordance with the Credit Agreement.
B. As security for the Loans, the Company has assigned and granted a security interest in, pursuant to certain security documents entered into between the Company and the Collateral Agent, all of its right, title and interest in, to and under, certain present and future property of the Company to the Collateral Agent for the benefit of the Secured Parties.
C. It is a requirement under the Credit Agreement and a condition precedent to the making of the Loans to the Company that Holdings shall have executed and delivered this Agreement.
D. The Collateral Agent and Holdings desire to appoint the Depositary Agent as the depositary to hold and administer money deposited in or credited to the Account established pursuant to this Agreement and funded with, among other things, distributions received by the Company and certain Affiliates of the Company.
ARTICLE I
“Account Collateral” has the meaning set forth in Section 2.3(a).
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“Account” has the meaning set forth in Section 2.2.
“Bankruptcy Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
“Collateral Agent” has the meaning set forth in the Preamble.
“Company” has the meaning set forth in the Recitals.
“Depositary Agent” has the meaning set forth in the Preamble.
“Discharge Date” means the date following the making of the Loans on which no Loans, Permitted Accrued Interest or other accrued interest is outstanding.
“Financial Assets” has the meaning set forth in Section 2.4.
“Financial Officer’s Certificate” means a certificate of the Financial Officer delivered by Holdings in the form of Appendix A attached hereto.
“Indemnified Person” means the Depositary Agent, and its officers, directors, agents, Affiliates and employees.
“Moody’s” means Xxxxx’x Investors Service, Inc.
“Permitted Investments” means:
(a) United States dollars;
(b) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality of the United States government (provided that the full faith and credit of the United States is pledged in support of those securities) having maturities of not more than one year from the date of acquisition;
(c) marketable general obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition thereof, having a credit rating of “A” or better from either S&P or Moody’s;
(d) certificates of deposit, demand deposit accounts and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case, with any domestic commercial bank having capital and surplus in excess of $500,000,000 and a Thomson Bank Watch Rating of “A” or better;
(e) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clauses (b), (c) and (d) above entered into with any financial institution meeting the qualifications specified in clause (d) above;
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(f) commercial paper or tax exempt obligations having one of the two highest ratings obtainable from Moody’s or S&P and, in each case, maturing within three months after the date of acquisition; and
(g) money market funds at least 95% of the assets of which constitute Permitted Investments of the kinds described in clauses (a) through (f) of this definition or a money market fund or a qualified investment fund (including any such fund for which the Collateral Agent or any Affiliate thereof acts as an advisor or a manager) given one of the two highest long-term ratings available from S&P or Moody’s.
“Property” means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.
“Release Amount” has the meaning set forth in Section 3.1(b)(i).
“S&P” means Standard & Poor’s Ratings Group.
“Trigger Event Date” has the meaning set forth in Section 3.5(a).
“Withdrawal Certificate” means a Withdrawal Certificate delivered by Holdings substantially in the form of Appendix B attached hereto.
ARTICLE II
APPOINTMENT OF DEPOSITARY AGENT; ESTABLISHMENT OF THE ACCOUNT
Section 2.1 Acceptance of Appointment of Depositary Agent.
(a) The Depositary Agent hereby agrees to act as depositary agent, as “securities intermediary” (within the meaning of Section 8-102(14) of the UCC) with respect to the Account and the Financial Assets credited thereto, and as “bank” (within the meaning of Section 9-102(a) of the UCC) with respect to the Account and credit balances not constituting Financial Assets credited thereto and to accept all cash, payments, other amounts and Permitted Investments to be delivered to or held by the Depositary Agent pursuant to the terms of this Agreement. The Depository Agent is a “securities intermediary” (within the meaning of Section 8-102(14) of the UCC) and also is a “bank” (within the meaning of Section 9-102(a) of the UCC). The Depositary Agent shall hold and safeguard the Account during the term of this Agreement in accordance with the provisions of this Agreement.
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(b) Holdings shall not have any rights to withdraw or transfer funds from the Account, as third party beneficiary or otherwise, except as permitted by this Agreement and to direct the investment of monies held in the Account as permitted by Section 3.2.
All amounts from time to time held in the Account shall be disbursed in accordance with the terms hereof, shall constitute the property of Holdings and shall be (a) subject to the Lien of the Collateral Agent pursuant to the LNG Entities Guarantee and Collateral Agreement (for the benefit of the Secured Parties and Crest) and (b) held in the sole custody and “control” (within the meaning of Section 8-106(d) of the UCC) of the Collateral Agent for the purposes and on the terms set forth in this Agreement and all such amounts shall constitute a part of the Collateral and shall not constitute payment of any Obligations or any other obligation of Holdings.
Section 2.3 Security Interests.
(a) As collateral security for the prompt and complete payment and performance when due of the Obligations, Holdings has pledged, assigned, hypothecated and transferred to the Collateral Agent (for the benefit of the Secured Parties) and has granted to the Collateral Agent (for the benefit of the Secured Parties) a Lien on all of Holdings’ rights, titles and interests in, to and under (i) the Account and (ii) all cash, instruments, investment property, securities, “security entitlements” (as defined in Section 8-102(a)(17) of the UCC) and other Financial Assets at any time on deposit in any Account, including all income, earnings and distributions thereon and all proceeds, products and accessions of and to any and all of the foregoing, including whatever is received or receivable upon any collection, exchange, sale or other disposition of any of the foregoing and any property into which any of the foregoing is converted, whether cash or non-cash proceeds, and any and all other amounts paid or payable under or in connection with any of the foregoing (collectively, the “Account Collateral”);
(b) Pursuant to the LNG Entities Guarantee and Collateral Agreement, Holdings has pledged, assigned, hypothecated and transferred to Crest and has granted to Crest a Lien on all of Holdings’ rights, titles and interests in, to and under the Account Collateral.
(c) The Lien on the Collateral for the benefit of the Secured Parties is expressly subordinated and junior in priority to the Lien on the Collateral for the benefit of Crest (i) regardless of the time, order or method of grant, attachment, recording or perfection of any financing statements or other security interests, assignments, pledges, deeds, mortgages and other liens, charges or encumbrances and (ii) notwithstanding any provision of the UCC or any applicable law.
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(d) The Depositary Agent is the agent of the Collateral Agent (for the benefit of the Secured Parties) for the purpose of receiving payments contemplated hereunder and for the purpose of perfecting the Lien of the Collateral Agent (for the benefit of the Secured Parties) in and to the Account and the other Account Collateral; provided that the Depositary Agent shall not be responsible to take any action to perfect or maintain the perfection of such Lien except through the performance of its express obligations hereunder or upon the written direction of the Collateral Agent (for the benefit of the Secured Parties) complying with this Agreement. This Agreement constitutes a “security agreement” as defined in Article 9 of the UCC.
To the extent that the Account is not considered a “securities account” (within the meaning of Section 8-501(a) of the UCC), the Account shall be deemed to be and maintained as
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a “deposit account” (as defined in Section 9-102(a)(29) of the UCC) to the extent a security interest can be granted and perfected under the UCC in the Account as a deposit account, which Holdings shall maintain with the Depositary Agent acting not as a securities intermediary but as a “bank” (within the meaning of Section 9-102(a)(8) of the UCC). The Depositary Agent shall not have title to the funds on deposit in the Account, and shall credit the Account with all receipts of interest, dividends and other income received on the Property held in the Account. The Depositary Agent shall administer and manage the Account in compliance with all the terms applicable to the Account pursuant to this Agreement, and shall be subject to and comply with all the obligations that the Depositary Agent owes to the Collateral Agent with respect to the Account, including all subordination obligations, pursuant to the terms of this Agreement. The Depositary Agent hereby agrees to comply with any and all instructions (within the meaning of Section 9-104(a)(2) of the UCC) originated by the Collateral Agent for the benefit of the Secured Parties directing disposition of funds and all other Property in the Account without any further consent of Holdings or any other Person.
Section 2.5 Jurisdiction of Depositary Agent. Holdings, the Collateral Agent and the Depositary Agent agree that, for purposes of the UCC, notwithstanding anything to the contrary contained in any other agreement relating to the establishment and operation of the Account, the jurisdiction of the Depositary Agent (in its capacity as the securities intermediary and bank) is the State of New York and the laws of the State of New York govern the establishment and operation of the Account.
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ARTICLE III
Section 3.1 The TUA Reserve Account.
(i) proceeds from the borrowing of the Loans in an aggregate amount equal to $135,000,000, which amount shall be deposited directly from the proceeds disbursed to the Company;
(ii) all distributions received by the Company with respect to the common limited partnership units of CQP held by the Company;
(iii) all distributions received by CSH and CQP GP with respect to their respective ownership interests in CQP; and
(iv) all amounts remaining in the Distribution Reserve Account (as defined in the CQP Partnership Agreement) released to Holdings as permitted under the CQP Partnership Agreement.
(b) Disbursements from the TUA Reserve Account.
(i) To the extent that no Event of Default has occurred and is continuing, Holdings may request disbursements from the Account to pay the Reservation Fee and Operating Fee (each as defined under the CMI TUA) obligations of CMI arising under the CMI TUA by submitting a duly completed and executed Withdrawal Certificate to the
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Depositary Agent and the Collateral Agent on a quarterly basis on the date that is no less than five (5) days or more than ten (10) days prior to the end of each calendar quarter commencing with the calendar quarter ending September 30, 2008. Each such Withdrawal Certificate shall include the amount of the proposed withdrawal (the “Release Amount”) and a Financial Officer’s Certificate certifying that (A) no Event of Default under the Credit Agreement has occurred and is continuing, (B) the requested funds are to be used to fund the Reservation Fee and Operating Fee obligations that are reasonably estimated to become due and payable within the next three (3) months in accordance with the CMI TUA, (C) Section 4.08 of the Sabine Indenture does not prohibit the making of distributions by Sabine, (D) such Financial Officer has no knowledge of any circumstance or event that could reasonably be expected to cause Sabine not to be able to make distributions to CQP in an amount that CQP requires to meet the following clause (E), pay distributions to public common unitholders and pay its other operating expenses, (E) such Financial Officer has no knowledge of any circumstance or event that could reasonably be expected to cause (1) CQP not to make distributions on common units held by the Company, the subordinated units and general partnership units within 45 days of the applicable calendar quarter-end in an amount at least equal to the Release Amount and (2) such distributions not to be remitted to the TUA Reserve Account pursuant to Section 3.1(a), (F) such Financial Officer has no knowledge of any circumstance or event that could reasonably be expected to prevent the release of the amounts in the CQP Distribution Reserve Account to Holdings on or before the date on which common unit distributions are made in respect of the calendar quarter ending June 30, 2009 in accordance with the CQP Partnership Agreement and (G) if the Required Lenders have delivered a notice of mandatory prepayment pursuant to Section 2.09 of the Credit Agreement, CEI has the financial resources available to pay the principal amount of and accrued interest (including Permitted Accrued Interest) on the Loans on or prior to the date required pursuant to such notice (provided that, with respect to the calendar quarter period ending September 30, 2008, such Financial Officer’s Certificate shall certify as to the statements in clauses (D) and (E) for distributions in respect of the calendar quarter ending December 31, 2008). Upon receipt before 12:00 Noon (New York City time) on any Business Day by the Depositary Agent, the Depositary Agent shall make the withdrawals, transfers and payments as specified in the applicable Withdrawal Certificate as soon as reasonably practicable, and in any event within five (5) Business Days following receipt of such Withdrawal Certificate. Disbursements from the Account under this clause (i) shall be used solely to pay the Reservation Fee and Operating Fee obligations of CMI arising under the CMI TUA.
(ii) At any time following the first date that full payments under each of the TUAs have been received for a full calendar quarter and provided that no Event of Default has occurred and is continuing, upon delivery of a duly completed and executed Withdrawal Certificate and Financial Officer’s Certificate certifying that (A) no Event of Default has occurred and is continuing, (B) Section 4.08 of the Sabine Indenture does not prohibit the making of distributions by Sabine, (C) such Financial Officer has no knowledge of any circumstance or event that could reasonably be expected to cause Sabine not to be able to make a distribution during the calendar quarter immediately following the delivery of such certificate and (D) such Financial Officer has no knowledge of any circumstance or event that could reasonably be expected to cause CQP not to make a distribution during such following calendar quarter at least equal to the 42.5 cents per share on all common, subordinated and general partner units outstanding, funds in the Account in excess of the amount required to make the next three monthly payments under the CMI TUA may be disbursed from the Account to pay distributions to Holdings or another Loan Party.
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Section 3.2 Investment of the Account.
(a) Amounts deposited in the Account under this Agreement shall, upon the delivery of investment authorizations and directions satisfactory to the Depository Agent, at Holdings’ written request and direction, be invested by the Depositary Agent in Permitted Investments, in each case as specifically directed by Holdings that will mature in such amounts and not later than such times as may be necessary to provide monies when needed to make payments from such monies as provided in this Agreement. Except as otherwise provided herein, net interest or gain received, if any, from such investments shall be deposited into the Account. Any loss shall be charged to the Account. The Depositary Agent shall have no responsibility or liability for any loss which may result from any investment made pursuant to this Agreement, or for any loss resulting from the sale of such investment.
(b) Absent written instructions from Holdings, the Depositary Agent shall invest the amounts held in the Account under this Agreement in Permitted Investments described in clause (b) of such definition. In the event that at any time amounts are funded into an Account after 11:00 am New York City time on any Business Day, the Depositary Agent shall have no obligation to invest or reinvest such amounts on the date on which such amounts are funded. Instructions with respect to the investment of amounts received into an Account after 11:00 am New York City time shall be deemed to apply for the following Business Day.
(c) If and when cash is required for the making of any transfer, disbursement or withdrawal in accordance with this Agreement, Holdings shall instruct the Depositary Agent to sell or liquidate into cash Permitted Investments (without regard to maturity) as and to the extent necessary in order to make such transfers, disbursements or withdrawals required pursuant to this Agreement. The Depositary Agent shall comply with any instruction from Holdings with respect to the liquidation of such Permitted Investments. In the event any such investments are so redeemed prior to the maturity thereof, neither the Depositary Agent nor the Collateral Agent shall be liable for any loss, penalties, fees or expenses relating thereto.
(d) For purposes of determining responsibility for any income tax payable on account of any income or gain on any Permitted Investment hereunder, such income or gain shall be for the account of Holdings. Holdings shall provide the Depositary Agent with certified tax identification numbers by furnishing appropriate forms W-9 or W-8 and such other forms and documents that the Depositary Agent may request.
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Holdings, fund balance statements in respect of the Account and amounts held in the Account. Such balance statement shall also include deposits, withdrawals and transfers from and to any Account and the net investment income or gain received and collected in the Account. The Depositary Agent shall maintain records of all receipts, disbursements, and investments of funds with respect to the Account until the third anniversary of the Discharge Date. Within 90 days after the end of each year, the Depositary Agent shall furnish to the Collateral Agent, with a copy to Holdings, a report setting forth in reasonable detail the account balance, receipts, disbursements, transfers, investment transactions and accruals for the Account during such year. The Depositary Agent shall promptly notify the Collateral Agent (with a copy to Holdings) of its receipt and the amount of any funds received from any Person that is, or is required hereunder to be, deposited into any Account. The Depositary Agent shall upon request give notice to the Collateral Agent and Holdings of the location of the Account.
Section 3.5 Trigger Event Date.
(a) On and after any date on which the Depositary Agent receives written notice from the Collateral Agent that (i) a payment default on the Loans or under any other Loan Document has occurred and is continuing, or (ii) an Event of Default has occurred and is continuing and the maturity of the Loans has been accelerated (the date of receipt of such notice (the “Trigger Event Date”), notwithstanding anything to the contrary contained herein (including this Article III), the Depositary Agent shall thereafter accept all notices and instructions required or permitted to be given to the Depositary Agent pursuant to the terms of this Agreement only from the Collateral Agent and not from Holdings or any other Person and the Depositary Agent shall not withdraw, transfer, pay or otherwise distribute any monies in the Account except pursuant to such notices and instructions from the Collateral Agent unless the Depositary Agent shall have received notice from the Collateral Agent that such payment default has been waived, cured or no longer exists or that the acceleration of the maturity of the Loans has been rescinded, as the case may be, in which event the terms of this Section 3.5 shall thereafter be inapplicable to such payment default or acceleration, as the case may be; provided that no amounts may be transferred by Holdings from the Account if any Withdrawal Certificate does not contain a statement that no Event of Default has occurred and is continuing.
(b) Notwithstanding the occurrence of the Trigger Event Date, Holdings shall continue to remit all amounts received in accordance with Section 3.1(a) to the Account.
(c) Within three Business Days of a Trigger Event Date, the Depositary Agent shall render an accounting of all monies in the Account as of such Trigger Event Date to the Collateral Agent.
(d) All of the Collateral Agent’s rights and remedies with respect to the Account and the other Account Collateral shall be subject to the terms of the LNG Entities Guarantee and Collateral Agreement. Accordingly, from and after a Trigger Event Date, the Collateral Agent shall have the right to control the Account, use the Account Collateral to repay the Obligations and the Crest Obligations and sell, dispose or realize on the Account Collateral, in each case in accordance with the Loan Documents.
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(e) From and after a Trigger Event Date, and notwithstanding anything herein to the contrary (but without limiting the rights or remedies of Crest under the Crest Settlement Agreement or the Secured Parties under the Loan Documents and in each case subject to the terms of the LNG Entities Guarantee and Collateral Agreement), the Collateral Agent (or the Depositary Agent at the Collateral Agent’s direction) shall be permitted to (i) liquidate and make Permitted Investments, (ii) direct the disposition of the funds in the Account, (iii) pay the obligations of CMI arising under the CMI TUA then due and payable and (iv) pay interest and principal in accordance with the priorities established by Section 6.05 of the LNG Entities Guarantee and Collateral Agreement and the Credit Agreement.
ARTICLE IV
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Certificate of Holdings or a certificate of an officer of the Collateral Agent, if appropriate. The Depositary Agent shall have the right at any time to seek instructions concerning the administration of this Agreement from the Collateral Agent, Holdings or any court of competent jurisdiction. The Depositary Agent shall have no obligation to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder. The Depositary Agent shall not be liable for any error of judgment, unless it shall be conclusively determined by a court of competent jurisdiction that the Depositary Agent was grossly negligent or acting with willful misconduct in ascertaining the pertinent facts. The Depositary Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any misconduct or negligence on the part of, or for the supervision of, any agent, attorney, custodian or nominee so appointed. Neither the Depositary Agent nor any of its officers, directors, employees or agents shall be liable for any action taken or omitted under this Agreement or in connection therewith except to the extent caused by the Depositary Agent’s gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review. The Depositary Agent shall not be deemed to have knowledge of an Event of Default unless the Depositary Agent shall have received written notice thereof. The rights, privileges, protections and benefits given to the Depositary Agent, including, without limitation, its rights to be indemnified, are extended to, and shall be enforceable by, the Depositary Agent in each of its capacities hereunder, and to each agent, custodian and other Persons employed by the Collateral Agent in accordance herewith to act hereunder.
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and (b) the retiring Depositary Agent shall promptly transfer all monies and Permitted Investments within its possession or control to the possession or control of the successor Depositary Agent and shall execute and deliver such notices, instructions and assignments as may be necessary or desirable to transfer the rights of the Depositary Agent with respect to the monies and Permitted Investments to the successor Depositary Agent. After the retiring Depositary Agent’s resignation or removal hereunder as Depositary Agent, the provisions of this Article IV and of Article V shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Depositary Agent. Any corporation into which the Depositary Agent may be merged or converted or with which it may be consolidated or any corporation resulting from any merger, conversion or consolidation to which the Depositary Agent shall be a party, or any corporation succeeding to the business of the Depositary Agent shall be the successor of the Depositary Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.
ARTICLE V
EXPENSES; INDEMNIFICATION; FEES
(a) Holdings, whether or not any of the transactions contemplated hereby shall be consummated, hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person from and against any and all losses, claims, damages, liabilities and related costs and expenses, including reasonable counsel fees, disbursements and other charges (any of the foregoing, a “Claim”), which may be imposed on, incurred by or asserted against an Indemnified Person in any way relating to or arising or alleged to arise out of: (i) the execution, delivery, enforcement or administration of this Agreement (including the performance by the Depositary Agent of its duties, rights and obligations hereunder) or any other Loan Document or any agreement or instrument contemplated thereby, the performance by the parties thereto of their respective obligations thereunder or the consummation of the Transactions; and (ii) any breach by Holdings of any of its representations or warranties under the Loan Documents or failure by Holdings to perform or observe any covenant or agreement to be performed by it under any of the Loan Documents; provided that the foregoing indemnities in clauses (i) and (ii) shall not, as to any Indemnified Person, apply to Claims to the extent they arise out of or result from
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(x) the gross negligence or willful misconduct of such Indemnified Person as determined in a final, non-appealable judgment by a court of competent jurisdiction, (y) any breach of any obligation or representation or warranty of such Indemnified Person under any Loan Document, or (z) any taxes (other than taxes incurred by such Indemnified Person as a result of its receipt of an amount payable under this Section 5.2(a)) owed by the Indemnified Person in its individual capacity.
(b) To the extent that the undertakings to defend, indemnify, pay and hold harmless set forth in clause (a) may be unenforceable in whole or in part because they are violative of any law or public policy, Holdings shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified liabilities incurred pursuant to clause (a) by any Indemnified Person. To the extent that Holdings fails to pay any amount required to be paid by it to the any Indemnified Person, each Secured Party (other than the Collateral Agent (in its individual capacity) or any other agent or trustee under any of the Loan Documents (in their respective individual capacities)) agrees to pay to such Indemnified Person, such Secured Party’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that such amount, was incurred by or asserted against the Indemnified Person. For purposes hereof, a Secured Party’s pro rata share shall be determined based upon its share of the outstanding Loans at such time.
(c) The agreements in this Section 5.2 shall survive termination of this Agreement.
ARTICLE VI
Company: | Cheniere LNG Holdings, LLC | |
000 Xxxxx, Xxxxx 000 | ||
Xxxxxxx, XX 00000 | ||
Attention: Xxxxxx XxXxxxxx | ||
Fax: (000) 000-0000 | ||
email: xxxxxx.xxxxxxxx@xxxxxxxx.xxx |
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Collateral Agent: | The Bank of New York Mellon as Collateral Agent 000 Xxxx Xxx Xxxxxxx Xxxx. Xxxxx 0000 | |
Xxxxxx, XX 00000 Attention Xxx Xxxxxxxx/Risk Management Fax: (000) 000-0000 | ||
Depositary Agent: | The Bank of New York Mellon as Depositary Agent 000 Xxxxxxx Xxxxxx 0X | |
Xxx Xxxx, XX 00000 Attention: Corporate Trust Administration Fax: (000) 000-0000 |
Section 6.3 Governing Law; Jurisdiction.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK EXCLUDING CHOICE OF LAW PRINCIPLES OF SUCH LAWS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT AND ANY ACTION FOR ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HERETO HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND APPELLATE COURTS FROM ANY THEREOF. HOLDINGS HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS CORPORATION SERVICE COMPANY AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY ACTION OR PROCEEDING IN THE STATE OF NEW YORK. IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, HOLDINGS AGREES TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT IN NEW YORK CITY ON THE TERMS AND FOR THE PURPOSES OF THIS PROVISION SATISFACTORY TO THE COLLATERAL AGENT. HOLDINGS IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO HOLDINGS AT ITS ADDRESS REFERRED TO IN SECTION 6.2. EACH OF
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THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT BROUGHT IN THE COURTS REFERRED TO ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED IN ANY OTHER JURISDICTION.
(c) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY MATTER ARISING HEREUNDER.
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constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Agreement or any document or instrument delivered in connection herewith by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement or such other document or instrument, as applicable.
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contemplated or arising hereafter, in connection therewith and agrees not to assert against The Bank of New York Mellon any claims, causes of action, damages or liabilities of whatever kind or nature relating thereto.
[Signature page follows.]
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CHENIERE LNG HOLDINGS, LLC | ||
By: | /s/ Xxxxxx X. XxXxxxxx | |
Name: | Xxxxxx X. XxXxxxxx | |
Title: | Treasurer |
THE BANK OF NEW YORK MELLON, not individually but solely in its capacity as Collateral Agent | ||
By: | /s/ Xxxxxx X. Xxxxxxxx | |
Name: | Xxxxxx X. Xxxxxxxx | |
Title: | Vice President |
THE BANK OF NEW YORK MELLON, not individually but solely in its capacity as Depositary Agent | ||
By: | /s/ Xxxxxx X. Xxxxxxxx | |
Name: | Xxxxxx X. Xxxxxxxx | |
Title: | Vice President |